Jordan v. State

Supreme Court of Georgia

May 21, 2018

JORDANv.THE STATE.

HUNSTEIN, Justice.

Michael
Jordan was convicted of felony murder and related offenses
arising out of the shooting death of Stacy Johnson and the
aggravated assaults of Rodney Miles and Shatik Bryant. On
appeal, Appellant contends that the evidence was insufficient
to sustain the verdicts, that the trial court erred in
admitting certain evidence, that he was entitled to a
mistrial, and that the trial court should have granted his
motion for new trial. Though we find no reversible error, we
do see error in certain aspects of Appellant's sentence,
and we must, therefore, vacate and remand for
resentencing.[1]

1. When
viewed in a light most favorable to the verdicts, the
evidence adduced at trial established as follows. On the
evening of March 3, 2013, Shatik Bryant, Rodney Miles,
Darnell Miles, and Stacy Johnson made the short drive from
Bryant's gated apartment complex to a local gas station
and convenience store. While in the store, Bryant and Rodney
observed a man wearing a dark-colored, letterman-style jacket
emblazoned with "Southside Mafia Elite" encircling
a hand sign understood by the men to be a gang symbol.
Indeed, the jury heard testimony that the Southside Mafia is
a gang that operates in Clayton County with territory near to
or including the convenience store. Bryant testified that he
was familiar with the gang and that he had no concerns with
the man's presence in the store, even though Johnson was
a member of a rival gang - the "Hit Squad." Though
nothing transpired inside the store, the man became
aggressive in the parking lot, flashing gang signs and
yelling at the four men. After responding with his own heated
words, Bryant left with his friends to return to the
apartment, driving past the man as he stood next to a blue
Dodge Avenger.

Moments
later, the group of men heard squealing tires and observed
the blue Dodge quickly approaching from the rear; gunfire
erupted from the blue Dodge, shattering the back window and
striking Johnson in the head. A nearby resident also heard
squealing tires and five very loud gunshots from a passing
vehicle. Bryant turned into the entrance of his apartment
complex, but it was blocked by a car waiting at the gate.
Bryant and the Miles brothers ran from their vehicle after
the blue Dodge missed the turn, but the reprieve was short
lived as the blue Dodge turned around and assailed the men
with a second round of gunfire.

Emergency
services transported Johnson to Grady Hospital, where he
later succumbed to his injuries. At the hospital,
investigators interviewed Bryant and Rodney, both of whom
independently identified Appellant in a photographic lineup
as the man from the convenience store with the blue Dodge.
Meanwhile, law enforcement recovered six shell casings at the
entrance of the apartment and secured surveillance video from
the convenience store, which shows Bryant and his friends, as
well as Appellant, independently shopping in the store. A gas
station employee identified Appellant as a regular and
testified that, on the night of the shooting, Appellant was
in the store, wearing his letterman-style jacket, and driving
a blue Dodge Avenger.

Investigators
later searched the apartment that Appellant shared with his
girlfriend, Alexandria Grace, and discovered under a sofa a
"Southside Mafia" jacket and a .40 caliber Taurus
pistol. Grace testified that both the jacket and the firearm
belonged to Appellant, and, further, that she had permitted
him to use her bluish-grey Dodge Avenger on the night of the
shootings. The State's firearm expert opined that the six
shell casings recovered from the scene came from
Appellant's .40 caliber Taurus; the gun did not, however,
match the projectile recovered from the deceased. Finally,
the State adduced evidence that, at the time of the murder,
Appellant had previously been convicted of a felony.

Appellant
asserts that the evidence was insufficient because the
State's case was speculative, conflicting, and filled
with "mistrustful" testimony. However,
"'[t]his Court does not reweigh evidence or resolve
conflicts in testimony; instead, evidence is reviewed in a
light most favorable to the verdict, with deference to the
jury's assessment of the weight and credibility of the
evidence.'" (Citation omitted.) Hayes v.
State, 292 Ga. 506, 506 (739 S.E.2d 313) (2013).
Likewise, there is no merit to Appellant's complaint that
the State failed to adduce fingerprint evidence, DNA
evidence, or the actual murder weapon. "Although the
State is required to prove its case with competent evidence,
there is no requirement that it prove its case with any
particular sort of evidence." Plez v. State,
300 Ga. 505, 506 (796 S.E.2d 704) (2017).

The
evidence presented below established that, on the night in
question, Appellant - a convicted felon and gang member - was
at the convenience store driving a blue Dodge Avenger where
he encountered the victims, including Johnson, a member of a
rival gang. After a verbal altercation between Appellant and
Bryant, Bryant drove off, and the blue Dodge followed; shots
were fired from the blue Dodge into Bryant's vehicle,
killing Johnson. One of the guns used in the shooting was
recovered from Appellant's apartment. This evidence was
sufficient to authorize a rational trier of fact to conclude
beyond a reasonable doubt that Appellant was guilty of the
crimes of which he was convicted. Jackson v.
Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560)
(1979).

2.
Appellant contends that the trial court erroneously denied
his motion to suppress the photographic-lineup
identifications made by Bryant and Rodney Miles. This
argument is without merit.

"It
is error to allow testimony concerning a pre-trial
identification of the defendant if the identification
procedure was impermissibly suggestive and, under the
totality of the circumstances, the suggestiveness gave rise
to a substantial likelihood of misidentification."
Miller v. State, 270 Ga. 741, 743 (512 S.E.2d 272)
(1999) (citing Neil v. Biggers, 409 U.S. 188 (92
S.Ct. 375, 34 L.Ed.2d 401) (1972)). "An identification
procedure is impermissibly suggestive when it leads the
witness to an 'all but inevitable identification' of
the defendant as the perpetrator." (Citations omitted.)
Miller, 270 Ga. at 743. "[I]f the court does
not find that the lineup was suggestive then it need not
reach the issue of whether there was a substantial likelihood
of misidentification." Waters v. State, 281 Ga.
119, 120 (636 S.E.2d 538) (2006). The trial court's
ruling is reviewed for abuse of discretion. Id.

Appellant
complains that the lineup was improper because, he says, it
occurred following a "stressful" and
"traumatic" incident, and neither Bryant nor Rodney
Miles had an adequate opportunity to observe Appellant or the
shooter from the blue Dodge. Appellant's concerns,
however, relate to the second prong of our analysis -
likelihood of misidentification - not whether there was an
impermissibly suggestive lineup in the first instance. With
respect to the first prong regarding suggestiveness, the
trial court received testimony at the suppression hearing
that: the photographs included in the lineup were
automatically generated by the Department of Driver Services;
the photographs depicted individuals with similar physical
features; Bryant and Miles were kept in separate rooms during
the photographic-lineup procedure; both men were given proper
instructions regarding the photographic array; neither man
was told whether Appellant's photograph was included in
the lineup; and each witness made his identification
independently and without suggestion from investigators. The
trial court had ample testimony from which to conclude that
the pre-trial photographic lineup was not impermissibly
suggestive and, thus, was not improper. Accordingly, the
trial court did not abuse its discretion in denying
Appellant's motion to suppress. See Williams v.
State, 275 Ga. 622 (2) (571 S.E.2d 385) (2002);
Miller, 270 Ga. at 743.

3. Over
Appellant's objection, the trial court permitted the
State to adduce evidence at trial pursuant to OCGA §
24-4-404 (b) concerning Appellant's participation in a
January 2013 burglary and related drive-by shooting.
Specifically, the jury heard testimony that: Appellant and an
individual named Keith Trammel burglarized a Clayton County
home in January 2013; the homeowner returned unexpectedly and
one of the burglars brandished a weapon to stop the homeowner
from giving chase; the burglarized residence was "shot
up" the night before Trammel's court date (at which
the homeowners were scheduled to appear); the projectiles
from that drive-by shooting came from the same firearm that
killed Johnson; and Appellant called Trammel to discuss ways
in which Trammel could avoid testifying at Appellant's
murder trial. The jury was instructed that it was permitted
to consider this evidence for the purposes of knowledge,
intent, plan, or motive. Now, on appeal, Appellant contends
that the admission of the 404 (b) evidence was erroneous.

Assuming
without deciding that the admission of the 404 (b) evidence
was erroneous, any error was harmless. The evidence
concerning Appellant's involvement in Johnson's death
was compelling. Appellant, a member of the Southside Mafia
gang, was identified by two surviving victims as the man
standing beside the blue Dodge immediately before the
shooting, and a convenience-store attendant - who
characterized Appellant as "a regular" - testified
that Appellant was at the store with the blue Dodge on the
night in question. Just moments after Appellant's verbal
altercation with Bryant and encounter with rival-gang member
Johnson, multiple witnesses heard squealing tires and
numerous gunshots, which witnesses said came from the blue
Dodge. Further, the six bullet casings recovered from the
entrance of the apartment complex matched a firearm that was
hidden in Appellant's apartment and that was later
identified as belonging to him; notably, the jury heard
testimony that the gun was missing exactly six bullets. We
also note that the evidence concerning the January 2013
incident was not particularly potent. Though the jury heard
testimony that Appellant and Trammel had been involved in the
January 2013 burglary, the homeowner did not identify
Appellant as the man who brandished the firearm. Likewise,
though the same firearm was used in both the drive-by
shooting and Johnson's death, the jury heard little
testimony that directly implicated Appellant in that prior
shooting. Accordingly, "it is highly probable that the
error did not contribute to the verdict." Peoples v.
State, 295 Ga. 44, 55 (757 S.E.2d 646) (2014) (citation
and punctuation omitted).

4.
During direct examination, Appellant's ex-girlfriend,
Grace, was asked whether she had seen Appellant since the
shooting, and she replied, "Not besides visitation,
no." Appellant moved for a mistrial, arguing that
Grace's "visitation" response was a clear
reference to Appellant's pre-trial incarceration and was
therefore impermissible character evidence; the trial court
...

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